United States v. Caraway

431 F. App'x 49

• Court: Court of Appeals for the Second Circuit
• Decided: September 6, 2011
• Docket: 10-3545-cr
• Status: Unpublished

Opinion

SUMMARY ORDER

Defendant-Appellant Norman S. Caraway appeals from a judgment of the United States District Court for the Western District of New York (Arcara, J.) sentencing him to 46 months’ imprisonment for failure to meet the requirements of the Sex Offender Registration and Notification Act (“SORNA”), 42 U.S.C. § 16901 et seq. Caraway was charged in a superseding indictment with, inter alia, one count of traveling in interstate commerce while knowingly failing to register and update a registration as required by SORNA, in violation of 18 U.S.C. § 2250(a). On July 22, 2009, Caraway filed both a counseled and a pro se motion to dismiss the superseding indictment, arguing primarily that SORNA violated the Ex Post Facto Clause, the Tenth Amendment, and the Commerce Clause of the United States Constitution. The district court adopted the Magistrate Judge’s Report and Recommendation (Schroeder, M.J.) recommending that the motions to dismiss be denied.

Caraway then pleaded guilty to the failure to register as a sex offender charge pursuant to a plea agreement, dated April 23, 2010, in which he reserved his right to appeal the denial of his pretrial motions to dismiss. The district court accepted the plea agreement and sentenced Caraway on August 5, 2010. Judgment was entered on August 26, 2010. Caraway timely appealed. We assume the parties’ familiarity with the underlying facts and procedural history.

We review de novo a district court’s legal conclusions, “including those interpreting and determining the constitutionality of a statute.” United States v. Stewart, 590 F.3d 93, 109 (2d Cir.2009), cert. denied, - U.S. -, 130 S.Ct. 1924, 176 L.Ed.2d 404 (2010). We review arguments or objections not brought to the district court’s attention for plain error. See Fed.R.Crim.P. 52(b); Puckett v. United States, 556 U.S. 129, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009).

On appeal, Caraway primarily argues that SORNA was retroactively applied to him in violation of the Ex Post Facto Clause of the Constitution. Caraway’s argument is foreclosed by our decision in United States v. Fuller, 627 F.3d 499 (2d Cir.2010), where “we h[e]ld that SORNA applied upon its enactment to all sex offenders regardless of when convicted,” id. at 507. Because Caraway’s “travel and failure to register occurred after SORNA’s enactment and [its] effective date ... there is no ex post facto problem.” Id. at 508 (internal quotation marks and emphasis omitted). Caraway’s argument therefore fails.

We have reviewed Caraway’s remaining arguments, including his constitutional challenges to SORNA contained in his supplemental pro se brief, and find them to be without merit under our case law. See United States v. Guzman, 591 F.3d 83, 89-91 (2d Cir.2010) (holding that SORNA’s registration requirements and criminal enforcement provision are proper under the Commerce Clause); United States v. Venturella, 391 F.3d 120, 133 (2d Cir.2004); see also Smith v. Doe, 538 U.S. 84, 93, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003). For the foregoing reasons, the judgment of the district court is AFFIRMED.